Managing and Responding to Poor Employee Performance By

Managing and Responding to Poor Employee Performance By Angela T. Hall, J. D. , Ph. D. 2011

Purpose • • This learning module provides a comprehensive review of employee performance and disciplinary issues. Specifically, this module addresses dealing with employees with performance deficiencies and other issues that may require the use of disciplinary procedures. © SHRM 2011 2

Learning Objectives • After completing this module, students will: > Be familiar with discipline terminology. > Be able to identify which disciplinary procedures are appropriate to use in specific situations. > Be able to write a Performance Improvement Plan (PIP). > Know how to impose employee discipline. > Know how to conduct an employee discharge. © SHRM 2011 3

Module Outline • • • Defining employee performance. Common performance deficiencies. Employment-at-will versus due-process employees. Discipline options. Disciplinary processes. © SHRM 2011 4

Module Outline (continued) • • • Progressive discipline. Alternatives to employee discipline. Importance of documentation. Possible outcomes of disciplinary actions. Legal issues in employee disciplinary actions. Handling employee discharges. © SHRM 2011 5

Session 1 • Defining Employee Performance • Common Performance Deficiencies • Employment-at-Will versus Due-Process Employees © SHRM 2011 6

Employee Performance • Task performance – How well employees perform their formal job duties. • Contextual performance –The extent to which employees perform extra role behaviors (that is, discretionary duties or duties not in one’s job description). > Examples of contextual performance include informally mentoring a new employee or “going the extra mile” to help a customer. © SHRM 2011 7

Other Important Aspects of Performance • Organizational citizenship behavior (OCB) –This is closely related to the concept of contextual performance. > OCB has been defined as discretionary individual behavior that is not formally recognized by organizations’ reward systems and that promotes the effective operation of organizations (Organ, Podsakoff & Mac. Kenzie, 2006). • Emotional Labor–These are the emotions that employees must appropriately display to do their jobs effectively (Grandey, 2000). © SHRM 2011 8

Employee Performance • To maximize employee performance, the following strategies should be employed: > 1. Communicate performance goals at hire. > 2. Perform periodic performance appraisals. > 3. Allow employees to participate, to the extent possible, in the formulation of their performance goals (Locke & Latham, 1990). © SHRM 2011 9

Common Performance Deficiencies • • • Absenteeism Tardiness Poor attitude/insubordination Poor task performance Poor contextual performance © SHRM 2011 10

Counseling Employees • Quite often, an employee’s actions do not warrant the use of formal disciplinary actions. In these cases, informal measures such as informal verbal counseling should be used. > Informal verbal counseling should be done in private. > Before conducting the counseling session, the supervisor or manager should prepare a list of issues that will be covered in the counseling session. © SHRM 2011 11

Tips for Informal Verbal Counseling • Do not use accusatory language. • Do not disparage the employee. • Attempt to maintain rapport for the sake of the longterm working relationship. © SHRM 2011 12

Performance Improvement Plans • A Performance Improvement Plan (PIP) is a tool employers use to improve employee behavior. > PIPs are a contract between the employee and employer in which the performance deficiencies of the employee are clearly articulated. The plan should include goals for increased performance and steps to be taken to achieve these goals. PIPs also include timelines for achieving performance goals. > PIPs are typically signed by the employee and at least one representative of the employer. • PIPs are generally not considered to be employee discipline, but rather a developmental tool for lowperforming employees. © SHRM 2011 13

Performance Improvement Plan Example © SHRM 2011 14

At-Will Versus Due-Process Employees • Most employees have an at-will employment relationship with their employers. This means that an employer may discharge the employee for any reason, except the following: > 1. Discrimination based on a protected class. > 2. A reason that is contrary to public policy (e. g. , the illegal firing of a whistleblower). > 3. Implied contract. © SHRM 2011 15

At-Will Versus Due-Process Employees (continued) • Due-process employees are normally allowed to protest disciplinary action taken against them through internal or external procedures. > Examples of due process employees include most federal workers (including U. S. Postal Service workers); most state, city, county or other local government workers; and some private sector workers, particularly union members. • To discipline a due-process employee, there must be just cause for the disciplinary action. © SHRM 2011 16

Student Activity Divide the class into groups of 2 -3 students and make a list of three employee performance issues that should result in verbal counseling and three employee performance issues that should result in harsher discipline, including termination. For the sake of this exercise, assume that the employee is a cashier at a grocery store. © SHRM 2011 17

Student Activity • Examples of conduct that may result in informal verbal counseling: > Absenteeism. > Tardiness. > Low task performance/productivity (including long customer lines, giving incorrect change). • Examples of conduct that might result in harsher discipline: > Stealing. > Fighting or other violence at workplace. > Continued absences, tardiness or poor performance after other less severe forms of discipline have already been utilized. © SHRM 2011 18

Questions? Comments? © SHRM 2011 19

Homework • For next class, please read chapters 3 and 4 in Dealing with Problems Employees by Del. Po and Guerin. © SHRM 2011 20

Session 2 • • • Review Disciplinary Options Disciplinary Processes Progressive Discipline Alternatives to Employee Discipline © SHRM 2011 21

Review • In Session 1, we covered the following topics: > Defining employee performance. > Common performance deficiencies. > At-will versus due-process employees. © SHRM 2011 22

Disciplinary Options • Oral warning/reprimand–This is an oral meeting discussing misbehavior or performance deficiencies and necessary steps to improve performance. • Written warning/reprimand–The employee is given a written statement of performance deficiencies and advised in writing that future deficiencies may result in further disciplinary action. • Probation–The employee is placed on probationary status for a period of time. During this probationary period, the employee’s performance is expected to improve. At the end of the probationary period, the employer’s performance is reevaluated. © SHRM 2011 23

Disciplinary Options • Suspension–The employee is barred from the worksite for a period of time. Suspensions may be paid or unpaid. • Leave with or without pay–This is similar to a suspension. However, this option is often used prior to a formal disciplinary hearing. • Demotion–The employee is transferred to a position with lower responsibility. Demotion is often accompanied by a decrease in pay and/of benefits. © SHRM 2011 24

Disciplinary Options • Termination with right to rehire–The employee is involuntarily discharged. However, he or she may be rehired by the employer at a later date. • Termination with no right to rehire–The employee is involuntarily discharged, and the employer will not rehire the employee in the future. © SHRM 2011 25

Progressive Discipline • If an employee is subject to progressive discipline, the employer generally imposes a less severe form of discipline before proceeding to a more severe discipline option. • Examples of steps in progressive discipline • 1. Oral warning • 2. Written warning • 3. Suspension • 4. Demotion and/or transfer • 5. Discharge © SHRM 2011 26

Progressive Discipline (continued) • Progressive discipline is not warranted in every case. Sometimes, based on the severity or nature of the employee’s conduct, it is justified for an employer to skip steps in the progressive discipline process, including proceeding straight to termination. © SHRM 2011 27

Disciplinary Processes • Mediation–A mediator helps the employer and employee come to a resolution of issues (nonbinding). • Arbitration–An arbitrator receives testimony/information from the employer and the employee and makes a binding decision. • Med-arb–A mediator attempts to help the employer and employer resolve issues. If the parties cannot come to an agreement, the mediator becomes an arbitrator who makes a binding decision (Thompson, 2005). © SHRM 2011 28

Disciplinary Processes (continued) • Employer tribunals–Some employers have internal tribunals consisting of employee and management representatives who hear testimony and deliver decisions on disciplinary cases. • Federal or state statutorily mandated procedures > Approximately two-thirds of federal workers are entitled to appeal disciplinary actions to the Merit Systems Protection Board (MSPD). > Many U. S. Postal Service workers are entitled to appeal disciplinary actions to the MSPD as well. > Many state and local government workers have disciplinary appeal rights provided by state statute or local ordinance. • © SHRM 2011 29

Alternatives to Traditional Disciplinary Processes • Informal verbal counseling–Sometimes merely talking with an employee regarding performance issues may increase performance. • Training/re-training– An employee’s performance and conduct may be improved by additional training. • Performance improvement plans–While not generally considered discipline, these plans offer employees a roadmap for improving their performance. • Employee assistance programs (EAP)–These programs offer employees help in dealing with problems from their personal lives that might negatively affect performance. © SHRM 2011 30

Optional Case Study: Smiling Clowns, Inc. © SHRM 2011 31

Smiling Clowns, Inc. • What could be done to improve Angela’s performance? Write a PIP. > Additional assignments. > Additional training. > Referral to an employee assistance p. > © SHRM 2011 32

Optional Case Study: City Hospital © SHRM 2011 33

City Hospital © SHRM 2011 34

City Hospital • Was the PIP given to Maria appropriate? • Can Juan compel Maria to get her CPA designation? © SHRM 2011 35

Questions? Comments? © SHRM 2011 36

Homework For next class, please read chapter 9 in Dealing with Problems Employees by

Session 3 • • • Review Importance of Documentation Possible Outcomes of Disciplinary Actions Legal Issues in Employee Disciplinary Actions Handling Employee Discharges © SHRM 2011 38

Review • In Session 2, we covered: > Disciplinary options. > Disciplinary processes. > Progressive discipline. > Alternatives to employee discipline. © SHRM 2011 39

Importance of Documentation • Regardless of whether progressive discipline is used, it is important to document the reasons for the imposition of disciplinary action. • Documentation is important for at-will and dueprocess employees. © SHRM 2011 40

Possible Outcomes of Disciplinary Actions • Employee development • Employee resentment > Perceived violation of psychological contract. © SHRM 2011 41

Possible Outcomes of Disciplinary Actions (continued) • Employee separation (voluntary or involuntary). • Employee withdrawal (psychological or physical). • Bystander (co-worker) reactions. © SHRM 2011 42

Legal Issues in Employee Disciplinary Actions • • • Civil Rights Laws > Employers cannot use disciplinary procedures against an employee merely due to that employee’s membership in a protected class. For example, an employer cannot discipline only men who are tardy to work, but not discipline tardy women. Whistleblower Protection > The federal Whistleblower Protection Act prohibits employers from retaliating against an employee for reporting the employer for alleged violations of the law. Contractual Rights > Express (e. g. , written contract between employee and employer). > Implied (e. g. , employee handbook can create an implied contract). © SHRM 2011 43

Legal Issues in Employee Disciplinary Actions (continued) Unionized workplaces > Many union contracts between employers and labor unions require that progressive discipline be used. > Moreover, disciplinary actions in these workplaces must be utilized only pursuant to the terms of the collective bargaining agreement negotiated between the union and the employer. © SHRM 2011 44

Handling Employee Discharges • Due to the severity and/or nature of an employee’s conduct or performance, sometimes termination is appropriate and warranted. © SHRM 2011 45

Handling Employee Discharges (continued) • Employers should keep in mind the following when terminating the employee: > 1. Were similarly situated employees terminated for the same behavior? > 2. Particularly for due-process employees, was there adequate documentation to support the termination? • It is good policy to seek advice from legal counsel before making the decision to terminate an employee. © SHRM 2011 46

Handling Employee Discharges (continued) • Research has shown that if employees perceive that the process used to determine their termination was fair (and if they perceive that they were treated fairly during this process), they are less likely to sue their employers for wrongful termination (Lind et al. , 2000). © SHRM 2011 47

Handling Employee Discharges (continued) • Based on the severity or nature of the grounds for termination and other factors, such as the apparent mental state of the employee, employers should consider what, if any, security measures should be in place for the termination. © SHRM 2011 48

Optional Case Study: Death Becomes You © SHRM 2011 49

Sample Termination Letter Dear Mr. Gabel: On August 10, 2010, you assaulted your immediate supervisor, Wes King. Specifically, you forced Mr. King to the ground and placed a starter pistol to Mr. King’s head. Your actions were reckless and dangerous. Such behavior could have caused serious bodily harm to Mr. King and possibly to you. You have made repeated threats of violence directly to Mr. King. This type of behavior is not tolerated by our company. As such, we have no choice but to terminate you immediately. You will not be allowed to return to the company premises. If you have any questions regarding continuation of company benefits, you may contact the HR department by phone or e-mail. Sincerely, Mari Wu HR Manager © SHRM 2011 50